Updated 12:07 pm, Saturday, June 29, 2013

Q: It does not look as though the sellers are going to be out of the house we are trying to purchase by the closing date. Our Realtor made the mistake of using "on or before" for a closing date. These people have not started the process of moving out. If the closing date comes, how can we get our earnest money and so on back from the sellers?

Also, we want to have a title with joint tenants in common with right of survivorship on our deed, but the title company states it only issues warranty deeds. What can we do? Thank you for your help.

A: Your Realtor did not make an error when setting the closing date for "on or before," unless you instructed the Realtor otherwise. Section 9A pertinent to closing is pre-printed "on or before." A Realtor may not change the pre-printed wording on a contract. You would need to either hire an attorney to do that, or change the wording yourself, before the seller entered into the contract. Section 10 pertinent to Possession, also has a checkbox labeled "Upon closing and funding."

As for the seller not beginning to show signs of moving, we suggest you instruct your Realtor to communicate with the listing Realtor and express your concerns about that. Let the listing agent know you will do a walk-through prior to closing and you expect the property to be vacant.

Make sure the seller knows you will not agree to fund the transaction until you have full possession of the property. We also suggest that your responsibilities are completed as much as practical (lender approval, a lender-approved HUD, closing scheduled with the title company, etc.).

Q: I signed a buyer/tenant representation agreement with a termination date of "at closing," which I took to mean that agent was only representing me on that particular house.

Now I am told I must use the agent for any purchase even if I buy directly from an owner. If that is true, how can I terminate and how long do I have to wait to buy without using the agent?

A: In answer to your first question, the Texas Real Estate Commission publishes an ethics course as part of its manual for Mandatory Continuing Education. In that manual, under the section entitled "Conflicts arising in early termination of agency," it states in pertinent part:

"The agency relationship is a highly personal relationship. It requires continuing consent of the principal and the agent. Agency may be terminated at any time by either party; however, an early termination without cause may expose the terminating party to liability under the agency agreement."

Therefore, we suggest you contact the real estate broker (the Broker of Record) and negotiate a written release of liability from the brokerage firm. An e-mail will do as long as the Broker references the agreement, the original date of termination, and the date on which the brokerage firm is waiving liability.

Once you have received the written waiver you are free to buy without using the agent or any agent if you choose.

Q: What is the Realtor rule when an inspection is done on a house, and the buyer's agent sends the inspection report to the seller's agent? Is he/she required to accept the inspection report? The inspection did have a termite inspection that found termites. Is he/she required to present to the seller? Is he/she required to disclose this information to future potential buyers?

The e-mail we received from the seller's Realtor after the inspection report was presented stated, "I cannot present to my clients. Neither I nor my clients want to be in possession of any part of the report. The report is the property of your clients and your clients alone." Is this approach ethical to do in real estate?

A: The fact is, the seller's agent (also called the "listing agent"), has received the inspection report. Despite allegedly having received the seller's instruction not to forward or otherwise notify the seller of the report, the Texas Real Estate License Act requires it. Period.

Termites and/or termite treatment are a material defect and must be disclosed in the form of the Seller's Disclosure Notice (TAR) or the Seller's Disclosure of Property Condition (TREC). Failure to do so could result in legal nightmares.

Q: My question is regarding the unauthorized use of the TAR commercial lease Form TAR-2010 I am a tenant and the landlord presented me with this lease in January 2012. I just noticed that it states "Use of this form by persons who are not members of the Texas Association of Realtors is not authorized." Is this lease agreement voidable? The landlord is not a Realtor nor a member of TAR.

A: Our information is that as a tenant (it does not matter if you are a commercial or residential tenant) you signed a contract and you can therefore be held to it. Despite the fact the landlord was in violation of United States copyright laws, you would still be held to the terms and provisions of the contract you signed, provided everything else was in order. You can call the Texas Association of Realtors at 1-800-873-9155 and ask to speak with the vice-president of legal affairs. Ask the vice president what can be done about landlords who blatantly violate the United States copyright laws.

To send us a question visit www.AskGeorge.net and select the "Ask A Question" button. Our answers to questions do not contain legal advice. If you wish to obtain legal advice, you should consult your own attorney. George Stephens is the broker of Stephens Properties. Charles J. Jacobus, J.D. is Board Certified by the Texas Board of Legal Specialization in Residential and Commercial Real Estate Law.